Candies v. Hulsey

• Decision Date: 01 March 2004
• Docket Number: No. S04A0301.,S04A0301.
• Citation: 277 Ga. 630,593 S.E.2d 353
• Parties: CANDIES v. HULSEY.
• Court: Georgia Supreme Court

593 S.E.2d 353

277 Ga. 630

CANDIES v. HULSEY.

No. S04A0301.

Supreme Court of Georgia.

March 1, 2004.

Renzo Wiggins, Ringgold, for appellant.

Ensign & Bowe, Peter C. Ensign, Chattanooga, TN, for appellee.

CARLEY, Justice.

In November of 1998, Ruby Pinion suffered a stroke and, in March of the following year, she fell and was hospitalized. From that time until her death in March of 2001, she lived either in a nursing home or in a hospital facility. In the past, Ms. Pinion had executed documents which were identified as her will. In June of 1999, Ms. Pinion, who was then 78 years old, signed another document by which she rescinded an existing power of attorney and named her niece, Linda Candies (Propounder), as medical guardian. In addition, the instrument stated that "[a]s to my personal belongings, such as household furnishings and all personal belongings, I leave to [Propounder] solely to disperse as she deems proper." The document was executed in the nursing home where Ms. Pinion was then residing, and was witnessed by three individuals and notarized. It also bore Propounder's signature, expressing her acceptance of responsibility for her aunt's medical decisions, and acknowledging that she would disperse Ms. Pinion's personal effects in accordance with her judgment.

After Ms. Pinion died, Propounder sought to probate the document as a will. The decedent's sister, Lorraine Hulsey (Caveator), filed a caveat, challenging the validity of the instrument as a will. The probate court found in favor of Propounder. On appeal, the superior court heard the case without a jury, and ruled that the writing was not a valid will. Propounder appeals from that order of the superior court.

1. Propounder urges that the superior court misconstrued the instrument. According to her, the language used in the document and the circumstances surrounding its execution show that it was intended to be Ms. Pinion's will.

The appeal from the probate court to the superior court was a de novo proceeding. OCGA §§ 5-3-2, 5-3-29. The superior court, sitting as the trier of fact, found that the instrument was not a will, and this Court must affirm that finding if it is supported by sufficient evidence. Dyer v. Souther, 272 Ga. 263, 266(4), 528 S.E.2d 242 (2000). In making that determination, we must construe the evidence most favorably for the Caveator. See McBride v. Jones, 268 Ga. 869, 870(2), 494 S.E.2d 319 (1998).

A will is the legal expression of a person's wishes as to the disposition of his or her property after death. Kirksey v. Teachers' Retirement System of Ga., 250 Ga. 884, 886(2), 302 S.E.2d 101 (1983). It takes effect only upon the death of the maker. Schriber v. Anderson, 205 Ga. 343(3), 53 S.E.2d 490 (1949). Thus, a will differs from an inter vivos instrument, such as a deed, which conveys a present interest in the grantor's estate. Martin v. Smith, 211 Ga. 600, 603(1), 87 S.E.2d 406 (1955). Testamentary intent "is determined from the instrument and parol evidence of the surrounding facts and circumstances at the time of its execution. [Cit.]" Brown v. Butts, 227 Ga. 591, 592(1), 182 S.E.2d 99 (1971).

Although no particular words are necessary to constitute a will, the document signed by Ms. Pinion is not drafted in the usual form of a will. In this regard, it differs from the writings that she previously executed and denominated as her will. Propounder does not offer any explanation for why Ms. Pinion would choose to deviate from her earlier practice and fail to identify the document that she executed in June of 1999 as her will. A primary aim of the document was to create a medical guardianship, which obviously serves an inter vivos purpose and, thus, is completely inconsistent with a will which takes effect only upon death. Moreover, it refers only to Ms. Pinion's "personal belongings," such as her...